Divided Court of Appeals panel allows “Substantial Compliance” with the health care provider affidavit requirement of R.S.Mo. §538.225
Published on November 1, 2018

Medical malpractice actions in Missouri are subject to the requirements of R.S.Mo. §538.225. This statute requires counsel for plaintiffs pursuing medical negligence actions to file an affidavit stating that he or she has secured the written opinion of an appropriately qualified health care provider attesting to the merit of the malpractice claim. The statute expressly provides that “a separate affidavit shall be filed for each defendant named in the petition.” The statute further states that the trial court shall dismiss claims where the plaintiff fails to file the required affidavit(s).

The affidavit of merit has been a requirement of Missouri medical malpractice cases for many years and, in 2018, was affirmed by the Missouri Supreme Court as constitutional in Hink v. Helfrich. It was strengthened in 2005 when the legislature amended the statute to make dismissal for non-compliance mandatory. In addition, the Missouri Supreme Court has recently rejected an argument that substantial compliance, i.e. compliance sufficient to satisfy the intent of the statute while falling short of strict satisfaction of its requirements, saved from dismissal a plaintiff who attempted to rely upon a compliant affidavit filed in a previous action without filing a new one. Mayes v. St. Luke’s Hospital, 430 S.W.3d 260 (Mo. 2014).

The Missouri Court of Appeals released its opinion in Ferder v. Scott on June 26, 2018. In Ferder the patient’s attorney filed a single affidavit addressing multiple defendants – both a physician and his employer. The defendants filed a motion to dismiss for failure to comply with the separate affidavit requirement of §538.225. The trial court granted the motion to dismiss.

The Court of Appeals, in a 2-1 opinion, reversed the decision of the trial court. The plaintiff conceded that her affidavit was “technically deficient” but argued in favor of substantial compliance because the affidavit was timely filed and verified that the claims were not frivolous. Thus, she argued, even in the absence of strict compliance, the legislative intent of §538.225 had been satisfied.

In so holding, the Court of Appeals majority held that Mayes was limited to its facts and did not preclude a finding of substantial compliance in other factual scenarios. Ferder’s affidavit complied with the substantive requirements of the statute and its only fault was the inclusion of multiple defendants. The majority concluded that substantial compliance, on these facts, was sufficient to survive a motion to dismiss.

The dissenting judge concluded that substantial compliance was impermissible under longstanding rules of statutory construction. Missouri precedent clearly states that courts shall presume that every word and provision of a statute have effect. In addition, §538.225 had been amended in 2005 to change the authority of the trial court from discretionary dismissal (“may dismiss”) to mandatory dismissal (“shall dismiss”). Thus, reasoned the dissenting judge, the legislature clearly and unambiguously expressed the intention that strict compliance with the statute is not optional. It is therefore not the place for the courts to interpret the statute so as to ignore its mandatory requirements.

The defendants filed an application for transfer to the Missouri Supreme Court. However, the application was denied. At this time, the Missouri Supreme Court will not be addressing the inconsistency between Ferder and Mayes.

As a result of this opinion, there is now an avenue for trial courts to be more forgiving of affidavits that fail to strictly comply with §538.225. This ruling further creates the potential for inconsistent applications of the statute from one case to the next. This uncertainty will continue unless the Missouri Supreme Court addresses the issue in the future.